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2017 DIGILAW 870 (JK)

Nazir Ahmad v. State of J&K

2017-09-20

M.K.HANJURA

body2017
JUDGMENT : M.K. Hanjura, J. 1. On 30.01.2012, at about 9.45 AM, a police patrol party, intercepted a car (Honda City) bearing No. UP16/5231, at Omara Morh, Udhampur. It was driven by the accused Nazir Ahmad with the co-accused named Abdul Aziz Khan and Ghulam Qadir, on board. Ghulam Qadir, gave a slip to the police patrol party and succeeded in fleeing away. The accused Nazir Ahmad and Abdul Aziz, were arrested on the spot. While checking the car, 18 packets of charas were recovered, as a consequence of which, a case, bearing FIR No. 39/2012, for the Commission of an offences under Section 8 read with Section 20, NDPS Act, was registered at Police Station, Udhampur, with which the investigation commenced. During the course of the investigation, photographs were taken. The packets were opened. These contained charas in the form of balls, 380 in number, weighing, 33 Kgs and 500 grams. Samples of the charas were taken. The residue was packed in 3 different parcels. These were sealed. The sample was resealed by the Magistrate and sent to FSL for analysis. The analyst reported that the sample packets contained charas. The statements of the witnesses were recorded. After the culmination of the investigation of the case, a charge sheet in terms of Section 173 Cr. PC was laid against the accused before the Court of learned Principal District Judge, Udhampur, who in turn transferred the same to the Court of learned Additional Sessions Judge, Udhampur. The accused were charged for the Commission of the aforesaid offence. They were put to trial and on the completion of the trial by judgment dated 3.05.2013, of the learned Additional Sessions Judge, Udhampur, they were convicted and sentenced to rigorous imprisonment for 10 years and also to pay fine of Rs. 1.00 lac, each, in default whereof, they were directed to undergo further imprisonment of 2 years. Aggrieved by the judgment of conviction and sentence, the accused assailed the same in an appeal filed before this Court on 19.06.2013. During the interregnum of the appeal, the petitioners/appellants filed two bail applications before this Court, which were rejected, on the dates 11.08.2014 and 19.07.2016, primarily, on the ground that the quantity of charas recovered from the accused fell within the scales of the commercial quantity which attracts the bar created under Section 37 of the NDPS, Act. During the interregnum of the appeal, the petitioners/appellants filed two bail applications before this Court, which were rejected, on the dates 11.08.2014 and 19.07.2016, primarily, on the ground that the quantity of charas recovered from the accused fell within the scales of the commercial quantity which attracts the bar created under Section 37 of the NDPS, Act. The appellants-accused have moved the instant application which is 3rd in row and it requires to be determined by this Court. 2. In the application, it has been pleaded, inter alia, that a subsequent event vis, the judgment of the Hon'ble Single Judge passed in the case of Mohammad Amin Reshi v. State, bearing Cr. Appeal No. 17/2013, raises a legal ground and its application to the facts and circumstances of the instant case will justify and warrant the release of the petitioners on bail. The application further states that in a fixed term case, the principle of law is that if half of the sentence is served then in view the policy and intendment of the code of Criminal Procedure as propounded by the Apex Court of the country, bail is usually granted. In the end it has been stated that since in an identical case bearing the title Mohammad Amin Reshi v. State, this Court has enlarged the accused on bail, therefore, on the basis of the doctrine of parity, the petitioners/appellants are also entitled to be admitted to bail. In view of the judgments delivered by the apex court in various cases. The State has failed to file the objections in answer to the application of the appellants/petitioner, despite the grant of repeated opportunities. 3. Heard and considered. The trial court record has also been perused by me. 4. There is no denial of the fact that the accused has been arrested on 30.01.2012. The order dated 03.06.2017, of this Court, details that Mohammad Amin Reshi, is admitted to bail for offences under Section 8 read with 20, NDPS Act, primarily, on the ground that he has been in the jail for the last 6 years which constitutes more than 50% of the punishment awarded to him coupled with the fact that there is no likelihood of the appeal being heard at an early date and, as such, he is entitled to be admitted to bail. This has been judged on the parameters of two judgments delivered in the cases of Smt. Akhtari Bi v. State of MP, 2001, AIR SCW 1236 and Bhim Singh v. Union of India and Others, (2015) 13 SCC 605 . Before going into the details of these two judgments, which for us are as sacred as a command, it will be profitable to refer to the provisions of 497-D of the Cr. PC, running under the head "Maximum period for which an under trial prisoner can be detained". It reads as under: "Where a person has during the period of investigation, inquiry or trial under this Code or an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under the law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in the writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of personal bond with or without sureties; Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than maximum period of imprisonment provided for said offence under the law. Explanation.- In computing the period of detention under this Section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded." 5. From the perusal of the above provisions of law, what comes to the fruition is that where a person has undergone detention for a period extended to one half of the maximum period of imprisonment specified for that offence under that law the accused shall be released on bail with or without sureties. The thrust under this provision of law is on the words "maximum period of punishment specified for the offences under that law" and not the punishment that has been awarded by a Court after considering the facts and circumstances of that case. The thrust under this provision of law is on the words "maximum period of punishment specified for the offences under that law" and not the punishment that has been awarded by a Court after considering the facts and circumstances of that case. The punishment provided for an offence under Section 8 of the NPDS Act, is provided in Section 20 (c) of the Act. It provides that whoever in contravention of the provisions of this Act, or any rule or Order made or condition of license granted there under possesses etc., any cannabis plant and cannabis which involves commercial quantity shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than Rs. 1.00 lac but which may extend to Rs. 2.00 lacs. 6. A commercial quantity of charas has been recovered from the appellants/accused for which the minimum period of punishment is rigorous imprisonment for a term which shall not be less than 10 years and this punishment can be stretched further to a period of 20 years. Section 497 D Cr. PC is lucid and clear. Going by the dictum of Section 497 D Cr. PC what has to be taken into consideration while granting bail is whether the accused has, or has not undergone half of the maximum period of imprisonment which herein this case, would be 10 years. Therefore, had the appellants/petitioners been in custody for a period of 10 years it would have given them an edge and an inalienable right to be enlarged on bail on the touchstone and strength of the aforesaid provision of the Criminal Procedure Code. The judgment delivered by the apex court of the country in the case of Bhim Singh v. Union of India & Others, (2015), 13 SCC 605 is lucid, luminous and clear and para 6 of the same is reproduced herein below for the convenience of ready reference: "6. We, accordingly, direct that jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1.10.2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure. We, accordingly, direct that jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1.10.2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure. In its sittings in jail the above judicial officers shall identify the under trial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436-A pass an appropriate order in jail itself for release of such under trial prisoners who fulfil the requirement of Section 436-A for their release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall submit the report of each of such sittings to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of this Court without any delay. To facilitate compliance with the above order we direct the Jail Superintendent of each jail/prison to provide all necessary facilities for holding the court sitting by the above judicial officers. A copy of this order shall be sent to the Registrar General of each High Court, who in turn will communicate the copy of the order to ala Sessions Judges within his State for necessary compliance." 7. What gets revealed from the perusal of para 6 of the judgment cited above is that the under trials who have completed one-half period of the maximum period or maximum period of imprisonment provided for an offences under the law shall be identified by the offence detailed in the judgment, so that they can be released on bail. It needs must be said that Section 436 A of Central Cr. PC corresponds to Section 497 D of the J&K, Cr. PC, on which explicit reliance has been placed in the judgment aforesaid. The impetus and stimulus of the aforesaid judgment is that a person who has completed one-half period of the maximum period of the period of the punishment which herein this case is one-half of the maximum period of 20 years of imprisonment provided for the said offence or the maximum period of imprisonment provided under the law for that offence is entitled to bail. Therefore, the ratio of the law laid down "Supra" does not apply to the facts and circumstances of the instant case inasmuch as the appellants/petitioners have completed a sentence of more than 5 years only and not 10 years. The petitioners/appellants cannot, therefore, take refuge or shelter under the judgment aforesaid for carving out a case for admitting them to bail. 8. The appellants/petitioners have placed reliance on another judgment of law, Reported in 2001 AIR SCW 1236, in support of their case and I am of the considered opinion that this judgment of law does not come to their aid and rescue inasmuch as the facts of that case are entirely different to the present one. The accused therein, was an old and infirm lady who was convicted and sentenced for the murder of her daughter-in-law and the apex court held that without commenting on the merits of the case and keeping in view the allegations made against the appellants/petitioners, coupled with the fact that she is old, we feel it appropriate to direct her release on bail by keeping the sentence awarded to her in suspension. It was also held that we have been persuaded to take such a course in view of the fact that during the pendency of the trial, the wife of 'H' the son of the appellant and co-accused with her, died while giving birth to a male child, who under the compulsion of circumstances was also kept in jail to be looked after by the appellant till he attained the age of 3 years. 9. From a bar glimpse of the law laid down above it gets revealed that the accused, a woman, was released on bail taking into consideration the peculiar circumstances of the case and the Supreme Court took a lenient view of the matter and gave her a latitude by releasing her on bail. Otherwise also, the case of a women has to be tested on different parameters, even if she is involved in an offence that carries a punishment of death or imprisonment of life as is the import of the proviso added to Section 497 (1) Cr. PC which reads as under: "Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: 10. PC which reads as under: "Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: 10. To canvass his arguments further, the learned counsel for the appellants/petitioners has argued that the apex court of the country in the judgment of law cited above has held that while the accused is in jail, the appeal is required to be disposed of within a specified period of 5 years in any case and if the appeal is not heard and determined within that period, for no fault of the convict such convict may be released on bail on such conditions as deemed fit and proper by the Court. The appellants/petitioners herein have filed the appeal on 19.06.2013, which means that the period of 5 years as provided in the judgment aforesaid is yet to expire. Therefore, the appellants/petitioners cannot claim bail on this ground also. Viewed in the context of all that has been said and done above, the judicial pronouncements of the law cited by the learned counsel for the appellants/petitioners do not come to the assistance of the petitioners in carving out a case for admitting them to bail. Therefore, the application entails dismissal and it is accordingly dismissed. However, in an apparent digression, the learned Registrar (Judicial) is directed to place the appeal before the Hon'ble Chief Justice for seeking further directions of his Lordship in the matter of listing the same before an appropriate Bench having roster, so that the same can be heard and decided finally with utmost dispatch.